Imagine if special interest groups run by powerful elites were handed regulatory power over their industries. These private organizations would wield Congress’s lawmaking power and the executive branch’s law enforcement authority. No ethics rules, no FOIAs, no transparency – yet the ability to use the power of a government agency to enrich their friends and punish their foes.

Can Congress delegate its lawmaking and law enforcement power over an entire private industry to an unelected, private corporation? The answer is clearly spelled out in the Constitution: no. But that’s exactly what happened to thoroughbred horseracing when Congress tucked the Horseracing Integrity and Safety Act (HISA) into one of the Covid relief packages in 2020.

In HISA, Congress granted to a brand-new private corporation governmental powers such as writing rules for the industry, conducting searches and seizures, and levying fees and fines against horse owners. While Congress tasked the Federal Trade Commission with overseeing the Authority, it handcuffed the FTC by only allowing it to rubber-stamp whatever the Authority decides.

In National Horsemen's Benevolent and Protective Association v. Black, thoroughbred horse owners and trainers represented by attorneys at the Center for American Rights argue that the nondelegration doctrine barring Congress from delegating its authority means HISA is illegal. They say that the stakes here are incredibly high and go beyond horseracing. If courts uphold HISA, Congress will increasingly hand over government power to private corporations with no oversight. This is a threat to democratic governance and transparency and must be stopped.

Background

National Horsemen’s Benevolent and Protective Association v. Black was filed March 15, 2021, in the U.S. District Court for the Northern District of Texas against the newly created “Authority” and the Federal Trade Commissioners. The National Horsemen’s Benevolent and Protect Association and twelve affiliate organizations are represented by attorneys from the Center for American Rights.

The State of Texas also joined the lawsuit and Oklahoma, Louisiana, and West Virginia are fighting HISA in other federal courts. The states argue HISA ends 125 years of state regulation of horseracing and applies top-down standards from a private corporation, rather than accountable state officials in cooperation with horsemen.  

The Latest

In November 2022, the U.S. Court of Appeals for the Fifth Circuit’s unanimous decision blocking the law. The bipartisan panel made it clear that the fundamental design of the Authority created by HISA violates the nondelegation doctrine of the U.S. Constitution.

Congress attempted to correct sections of the law that the Fifth Circuit called out in its ruling. Now, after a lower court allowed HISA to stand on the merits, attorneys for the National Horsemen’s Benevolent and Protective Association have again appealed to the U.S. Court of Appeals for the Fifth Circuit.

Attorneys

Daniel Suhr

Important filings

First Amended Complaint, April 2, 2021
District Court Memorandum Opinion and Order, March 31, 2022
Fifth Circuit Court of Appeals Decision, November 18, 2022
Press Release, April 26, 2023
District Court Memorandum Opinion and Order, May 4, 2023

Recent Media Coverage

The Uneasy Birth of Horse Racing’s National Regulator, Wall Street Journal, May 19, 2023
A Horse Race Goes to Court, Wall Street Journal, May 18, 2023
AP News: Horse racing poised for new antidoping, medication rules, AP News, May 5, 2023